I'm not a particularly huge fan of the Raiders, partly due to geography (as I currently reside in the land of the San Diego Chargers) and partly on the merits of the team. As a result, part of me was pleased to read this case, in which the NFL essentially prevails on every single issue. Justice Doi Todd not only rejects all of the Raiders' claims of errors regarding the six-week trial that led to a 9-3 verdict on behalf of the NFL (as well as the prior entry of summary judgment in favor of the NFL on various claims), but also reverses the grant of a new trial that had been entered by the trial court on grounds of juror misconduct. So a complete win for the NFL. And a 57-page drubbing of the Raiders.
My wry smile at seeing the Raiders lose, however, is somewhat diminished by my firm belief that the Court of Appeal has somewhat done them wrong. It's not that the Raiders didn't have good counsel; they clearly did (as, of course, did the NFL). But I had the very strong sense as I read the opinion that the Court of Appeals went out of its way -- and stretched the law -- in order to exercise its own independent judgment about the proper resolution of this high-profile litigation. Instead of acting like an appellate court, Justice Doi Todd made sure that the "right" party prevailed. And in doing so, she made the law a lot worse.
You'll have to read the entire opinion to see if you agree with my overall assessment in this regard, but I'll mention two fairly brief examples. First, in Part A(1), Justice Doi Todd discounts the trial court's grant of a new trial because it failed to adequately specify the reasons for the grant. I actually agree with her in this regard; the trial court's explanation is a bit too general -- and, at one sentence, way too short -- and I'd expect a lot more, especially in a case like this. But Justice Doi Todd also founds this conclusion in part by arguing (on page 12) that the order did not reflect "mature and careful reflection on the part of the judge" because "the order was issued 12 days after the hearing on the new trial motion," which "makes it appear as if the decision to grant a new trial was 'hasty or ill-considered.'" I agree that the length of the order makes it suspect, but completely disagree with respect to its timing, which I don't find suspicious at all. Rendering a short decision within two weeks after very full briefing and a hearing seems entirely fine to me.
Justice Doi Todd's argument in this regard is also curious given the Court of Appeal's own dubious temporal treatment of the appeal. This case was scheduled for oral argument on February 17, 2005. Three days before this argument, on February 14, 2005, the NFL sent the Court of Appeal a letter saying that it was in "serious negotiations" with the Raiders and requesting a continuance of the oral argument. The Court of Appeal denied this request the same day, oral argument transpired three days later, and then Justice Doi Todd issued her 57-page published opinion a mere six days after the oral argument concluded. If a decision 12 days after oral argument partially reflects hasty judgment, a decision in half that time is doubly worse, no?
In a similar vein, I am also somewhat troubled by the rapid turnaround in the Court of Appeal, especially given the contemporaneous settlement negotiations and request for delay. The rapidity here makes crystal clear both the reliance by the Court of Appeal on their pre-argument materials -- essentially, draft votes and complete drafts of an opinion -- and the corresponding reality that oral argument in many California appellate cases is merely pro forma. It's not that we all didn't know that already. But it's still somewhat depressing, and to see it in a high-profile case such as this -- with quality counsel on all sides -- only furthers one's distaste for the means through which the California Court of Appeal often resolves its workload.
On the merits of the appeal, I also think that in the haste to "do what's right" and slam the Raiders, Justice Doi Todd makes bad law, particularly in the new trial/jury misconduct portions of the opinion (Parts (A)(3)(a) and (b)). She essentially holds that the Court of Appeal should exercise independent review of new trial orders in cases like this, and that even when (as here) serious allegations of juror misconduct are made (and have ample evidentiary support), a new trial is unwarranted when the party that opposes the new trial submits substantial affidavits that contradict those of the moving party. That just seems flatly wrong to me. Sure, the trial judge can properly deny a new trial if she finds the responsive affidavits to be more credible, or qualitatively better. But she is also perfectly entitled to grant a new trial if she finds the contrary.
To hold -- as Justice Doi Todd does here -- that contradictory affidavits essentially preclude the grant of a new trial as a matter of law is both wrong and improper. Jurors may often submit conflicting affidavits: the jurors in the majority in a civil case may often naturally submit affidavits that support the verdict (and either deny that misconduct occurred or, as here, claim not to recall it), and the jurors who were outvoted often have an incentive to do the opposite. That's why we have trial courts; to resolve these evidentiary conflicts, to assess the credibility of the evidence and the possible impact of any misconduct, and to make the correct ruling based upon both the facts and their familiarity with the trial and the jurors. That's their job.
There is no reason to create a rule that in the face of substantial conflicting affidavits, it is error to grant a new trial -- and great reason to prefer a contrary principle. And precedent in no way compels the conclusion reached by the Justice Doi Todd. To say that a trial court does not err by denying a new trial in the face of conflicting affidavits is far, far different than saying -- as Justice Doi Todd does here -- that conflicting affidavits essentially cannot justify a new trial.
The Court of Appeal should have remanded the case back to the trial court to specify its reasons and resolve the conflict. But Justice Doi Todd presumably knew what would then happen: that the trial court would give reasons for its previous decision to grant a new trial, and those reasons would not be an abuse of discretion. But the Court of Appeals didn't want a new trial. Hence the decision on the merits here.
That's my read, anyway. It's always difficult for appellate judges to take their roles to heart and to let potentially erroneous judgments stand as a result of the general principle that we do not want the Court of Appeal to resolve a case on its own. But that's part of the job. And it's a part of the appellate role that I don't think got much respect in this case. To the detriment of both the Raiders and the law.